The following definitions and rules of interpretation apply in these Conditions.
Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges means the charges payable by the Customer for the supply of the Services in accordance with clause 5.
Commencement Date has the meaning given in clause 2.2.
Conditions means these terms and conditions as amended from time to time.
Contract means the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer means the person or firm who purchases Services from the Supplier.
Deliverables means the deliverables produced by the Supplier for the Customer, including all course materials (whether in hard copy or electronic form).
Intellectual Property Rights means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, , goodwill and the right to sue for passing off [or unfair competition], rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order means the Customer's order for Services as set out in the Customer's purchase order form or the Customer's written acceptance of a quotation by the Supplier, as the case may be (and in each case as amended by the Order Acceptance where applicable).
Services means the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.
Specification means the description or specification of the Services provided in writing by the Supplier to the Customer.
Suitable Accommodation means a lecture room of suitable size and ventilation for the number of delegates to attend, allowing delegates to be seated in a "U" shape or classroom-style arrangement with sufficient space for the presenters table, projector and screen, flipchart and stand, plus separate "breakout" rooms and any other space as expressly or implicitly required to comply with the Specification.
Suitable Facilities means, save to the extent expressly made the responsibility of the Supplier in the Specification, all facilities and supplies reasonably required by the Supplier to provide the Services, including as applicable, power, internet (with a stable connection of at least 12mbps and sufficient bandwidth for the number of delegates in attendance), heat, light, computers (including a laptop computer per delegate), IT equipment and video equipment.
Supplier means Ashbury Educational Services Limited registered in England and Wales with company number 03845520.
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order ("Order Acceptance") at which point and on which date the Contract shall come into existence ("Commencement Date").
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues, brochures or website, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but (save as set out in clause 3.3) any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Where the Supplier and the Customer have agreed a fixed date or dates for the delivery of a course in writing (whether in the Order or otherwise), then the Supplier will not change that date save in the case of either a Customer Default (as defined in clause 4.2) or in the circumstances set out in clause 11.1 (or otherwise with the consent of the Customer, not to be unreasonably withheld or delayed).
3.4 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.5 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.6 The precise delivery, format and "feel" of any training course are heavily dependent on the individual presenter. The Supplier selects experienced presenters to ensure that the delivery is of a high standard. For the avoidance of doubt, it shall not constitute a non-compliance with or variation of the Specification where different presenters have different styles in this regard.
4. CUSTOMER'S OBLIGATIONS
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides for inclusion in the Specification and/or Deliverables are complete and accurate;
4.1.2 co-operate with the Supplier in all matters relating to the Services;
4.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier;
4.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5 procure for the delivery of any training course Suitable Accommodation and Suitable Facilities;
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.7 keep all materials, equipment, documents and other property of the Supplier ("Supplier Materials") at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
4.1.8 comply with any additional obligations as set out in the Specification.
4.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation ("Customer Default"):
4.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
4.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Order will set out the Charges in one or more “fixed fees” for the Services or part thereof. This may be on the basis of a single lump sum payment in respect of certain Services, or a fee per delegate attending a particular training course (which may be subject to a minimum charge regardless of actual attendance). Save as expressly set out in clause 5.2 below (or elsewhere in this Contract), the Charges set out in the Order shall be the full amount of the Charges.
5.2 In respect of provision of training courses, the Charges are based on an 8 hour day (inclusive of meal and other breaks). Where the session continues beyond 8 hours, additional Charges will be due from the Customer at a rate of £100 per hour (or part thereof) (“Hourly Rate”).
5.3 The Supplier shall (in addition to the Charges) be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services.
5.4 The Supplier may invoice the Customer for the Charges at any time after the Commencement Date (or as otherwise specified in the Order). Where the Supplier deems it appropriate, it may require full or part payment of the Charges before commencing performance of the Services.
5.5 The Customer shall pay each invoice submitted by the Supplier:
5.5.1 within 14 days of the date of the invoice; and
5.5.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
5.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time ("VAT"). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under these Conditions, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.7 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
5.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
6.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business by those delegates who have attended the applicable course only.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
6.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
7. DATA PROTECTION
The parties shall comply with their respective data protection obligations as set out in any applicable legislation.
8. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
8.2.1 death or personal injury caused by negligence;
8.2.2 fraud or fraudulent misrepresentation; and
8.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.3 Subject to clause 8.2, the Supplier's maximum aggregate liability to the Customer arising out of or relating to the Contract shall not exceed 150% of the Charges paid by the Customer under the Contract.
8.4 Subject clause 8.2, the Supplier shall have no liability whatsoever arising out of or relating to this Contract for any of the following, whether direct or indirect liability (save in the case of clause 8.4.8):
8.4.1 loss of profits or revenue.
8.4.2 loss of sales, business or opportunity.
8.4.3 loss of agreements or contracts.
8.4.4 loss of anticipated savings or increasing costs.
8.4.5 loss of use or corruption of software, data or information.
8.4.6 loss of or damage to reputation or goodwill;
8.4.7 losses under the Customer's third party contracts; and
8.4.8 indirect or consequential loss.
8.5 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 and all other warranties or conditions of quality, fitness or similar not expressly set out in the contract are, to the fullest extent permitted by law, excluded from the Contract.
8.6 Subject to clause 8.2, if the Customer is not the sole and ultimate recipient and/or end user of the Services and/or Deliverables (each recipient or user subsequent to the Customer being an "End User", then the Customer shall indemnify and hold the Supplier harmless from and against any liability to such End Users which is in excess of or duplication of liability which the Supplier would owe to the Supplier under this contract in respect of the same act(s), omissions, or circumstances.
8.7 This clause 8 shall survive termination of the Contract.
9.1 Without affecting any other right or remedy available to it, the Supplier may suspend and/or terminate the Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
9.1.2 the Customer failing to make any payment under the Contract by the due date for such payment;
9.1.3 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.4 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.5 the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10. CONSEQUENCES OF TERMINATION
59.1 On termination of the Contract:
10.1.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice (for the full Charges in respect of any Services for which a training course date had been agreed (on the basis that the Supplier is unlikely to be able to reallocate the resource committed to that date post-termination), and based on the Hourly Rate for work done plus costs incurred towards particular Services which either don’t relate to a certain date or for which no date has yet been fixed), which shall be payable by the Customer immediately on receipt;
10.1.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
11.2.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
11.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
11.3 Confidentiality. 11.3.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3.2.
11.3.2 Each party may disclose the other party's confidential information:
126.96.36.199 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11.3; and
188.8.131.52 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
11.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.4.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Contract deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.8.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order (if any).
11.8.2 Any notice or communication shall be deemed to have been received:
184.108.40.206 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
220.127.116.11 if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 18.104.22.168, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
11.8.3 This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.